Essay on Concept of punishment in India

Punishment involves pain or suffering produced by design and justified by some value that the sufferer is assumed to have violated. Accidental pain or suffering is not punishment.

Jerome Hall (The Aims of the Criminal Law, 1958) has described punishment in the following terms: First, punishment is inflicting pain. Second, it is coercive. Third, it is inflicted in the name of the State, i.e., it is 'authorised'. Fourth, it presupposes rules, their violation, and a formal determination of that (violation) expressed in a judgment.

Fifth, it is inflicted upon an offender who has caused/committed harm. Sixth, the extent or type of punishment is in some defended way related to causing commission of the harm, and aggravated or mitigated by reference to the personality of the offender, his motive, and temptation.

Benn and Flew (Cr. Hart, H.L.A. in Radzinowicz and Wolfgang [ed.] Crime and Justice, Vol. II, 1971: 21) have given some elements of punishment:

(1) It must involve pain and its consequences must normally be considered unpleasant.

(2) It must be for an offence against legal rules.

(3) It must be given to the actual offender who has committed the offence.

(4) It must be imposed by an authority constituted by the legal system. Referring to these elements as the 'central case' of punishment, Hart has also pointed out four 'secondary cases' of punishment: (a) punishment for breaches of legal rules imposed or administered otherwise than by officials; (b) punishment for breaches of non-legal rules or orders (e.g., punishment in family or school); (c) collective punishment of some member of a social group for actions done by others without the former's authorisation; and (d) punishment of persons other than under (e) who neither are in fact nor supposed to be offenders.

However, in criminology we talk of 'punishment' of only those persons who violate the law for which the state imposes some pain/suffering on them.

Why are certain kinds of action forbidden by law described as crimes and made punishable? It is to discourage certain types of conduct considered harmful to society. The nature of punishment or inflicting of pain upon those who violate laws depends upon attitude towards causation of crime, i.e., whether crime is viewed in terms of free will or determinism.

Retributive and deterrent punishment is suggested if the society holds that individual himself is responsible for the crime he commits, while reforms are suggested if social structures and social systems are held responsible for criminality. The inflicted punishment may be physical, economic, psychological (causing mental suffering as in imprisonment) or social.

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